Jammu & Kashmir High Court
B.S. Lamba vs M.A. Kanth And Ors. on 6 December, 1989
Equivalent citations: AIR1990J&K79, AIR 1990 JAMMU AND KASHMIR 79
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER R.P. Sethi, J.
1. Application for restoration of an application for restoration of a suit which was dismissed in default has been resisted to be barred by time besides other objections raised by the respondent. The facts giving rise to the filing of the present petition are that a suit filed by the plaintiff for declaration with consequential relief of injunction was dismissed for default of appearance and non-prosecution by the plaintiff vide Court order passed on 24-5-1988. An application for restoration of the said suit was filed in the Court on 30th Aug., 1988 which was dismissed for default of appearance on 30-1-1989. The present application was filed in the Court on 7-3-1989 without there being any separate application for condonation of delay or extension of time.
2. I have heard the learned counsel for the parties and perused the record.
3. Article 163 of First Schedule to the Limitation Act provides that an application for an order to set aside a dismissal for default of appearance or for failure to pay costs of services of process or to furnish security of cost may be filed by a plaintiff within 30 days from the date of the dismissal. It is argued by the learned counsel for the petitioner that Art. 163 cannot be stretched to make applicable to applications of the nature which has now been filed by the plaintiff in the instant case. It is argued that the provisions of the aforesaid article are applicable to the initial application for restoration of the suit dismissed for default, and not to an application for the restoration of such application dismissed for default. The argument of the learned counsel if tested on the touch stone of reason is apparently misconceived and if accepted would result in the miscarriage of justice. The article finds its place in the 3rd Division of the schedule pertaining to the applications and deals with the applications filed by a plaintiff for an order to set aside a dismissal for default of appearance. There is conflict of authorities of different High Courts regarding the maintainability of such applications but consensus is that such application is maitainable provided the same is filed within the time specified under Article 163 of the Limitation Act. It was held in Thali Venkata Seetharamayy v. Venkataramaya, AIR 1914 Madras 439 that where in a suit dismissed for default of plaintiff an application for restoration of the suit was dismissed also for default of appearance, the second application filed was governed by the provisions of Article 163 of the Limitation Act requiring the same to be filed within thirty days. In Nanak Chand v. Paras Ram, AIR 1958 Him Pra 9, reliance was placed upon AIR 1914 Madras 439 (supra) and AIR 1927 Cal 534 and it was held (at p. 10 of AIR):
"where, as in this case, the application to set aside the dismissal of the suit (which had been dismissed in default) was, itself, dismissed in default, two remedies were open to the plaintiff. He could have either gone up in appeal against the order dismissing the application under Order 9 Rule 9 (under Order 43 Rule l(c)), or he could have filed another application under Order 9 , Rule 9, provided the same was within the period of limitation. In Sarat Krishna v. Bisweswar Mitra, AIR 1927 Cal 534, cited by learned counsel for the respondent Mukerji and Graham, JJ., observed that:
"When an application under Order 9, Rule 9, for restoration of the suit is dismissed for default under Rule 4 of that order, no application lies under Order 9, Rule 9, for setting aside that order of dismissal and for restoration and re-hearing of the former application under Order 9 Rule 9, but the second application to restore the suit itself and not to restore the first application under Order 9, Rule 9, Civil P.C."
In Nalu Subba Row v. Gauti Venkataratnam, AIR 1914 Madras 438 (1), Tyabji, J. held that a second application to restore a suit, which had been dismissed in default, was time barred because it was made two months after the dismissal of the suit. Under Article 136 of the Limitation Act, an application to set aside a dismissal for default should be made within 30 days of the dismissal.
I am unable to support the view of the Court below that an application under Section 151, Civil P.C. would be competent in every case to restore an application under O., Rule 9 (which had also been dismissed in default), and such an application would be governed by Article 181, Limitation Act, i.e. which prescribes 3 years limitation. If the Subordinate Judge's view is upheld, a very curious situation would be created. As was pointed out in Pitambar Lal v. Dodee Singh, AIR 1924 All 503.
"In this event, a litigant may go on for ever and apply to restore in an uninterrupted ' stream of unsuccessful application."
This would lead to an impossible situation and would defeat the provisions of Article 163. It is noteworthy that, in the present case, the application under Section 151, Civil P.C., was made 71 days after the application under Order 9 Rule 9 was dismissed in default, i.e., long after the expiry of the period of limitation for filing a fresh application under Order 9 Rule 9 or for filing an application under Order 43, R. l(c)".
4. Accepting the plea of the learned counsel for the petitioner that no period of limitation is prescribed for such an appliction would defeat the ends of justice and may follow absurd results. Every litigant is supposed to be vigilant of his rights and avail of the remedy expeditiously in accordance with the provisions of law and within the time prescribed under the limitation Act. If the original application for restoration of the suit has to be filed within thirty days, an application under Section 151, C.P.C. for restoration of such application dismissed for default cannot be permitted to be filed at any time according to the whim and choice of the plaintiff. The petitioner has also not given any cogent reason for not filing this C.M.P. within the time specified and has miserably failed to explain the delay. Acordingly this petition is held barred by time and is dismissed but without any order as to costs.